MAXWELL P, PRIEST, KAYE, T FORREST and EMERTON JJA
WHERE HELD:
MELBOURNE
DATE OF HEARING:
6 November 2019
DATE OF JUDGMENT:
10 December 2019
MEDIUM NEUTRAL CITATION:
[2019] VSCA 293
JUDGMENT APPEALED FROM:
DPP v Drake (Unreported, County Court of Victoria, Judge Stuart, 7 June 2019) (sentence)
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CRIMINAL LAW – Appeal – Sentence – Standard sentence offence – Crown appeal – Respondent pleaded guilty to aggravated burglary, rape, attempted rape, assault with intention to commit sexual offence and sexual assault – Forced entry into victim’s home – Protracted sexual offending – Total effective sentence 12 years and six months imprisonment with non-parole period eight years – Whether judge explained how sentence related to standard sentence – Whether sentence manifestly inadequate – Totality – Proportionality – Moral culpability – Relevance of dysfunction, disadvantage and abuse during formative years – Sentence not manifestly inadequate – R v Brown [2019] VSCA 286 applied, Bugmy v The Queen (2013) 249 CLR 571, R v O’Rourke [1997] 1 VR 246 considered –Sentencing Act 1991 ss 5B, 6E.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr C B Boyce QC with Ms J Warren
Mr J Cain, Solicitor for Public Prosecutions
For the Respondent
Mr N Papas QC with Ms J Poole
Criminal Lawyers Victoria
MAXWELL P PRIEST JA KAYE JA T FORREST JA EMERTON JA:
Overview
At about 5.30 am on 14 October 2018, the respondent, then aged 25 years,[1] broke into the residential unit of a 56 year old woman, ‘AB’, and subjected her to a terrifying and protracted sexual ordeal.
[1]He was born on 18 August 1993.
Subsequently, on 6 June 2019, the respondent was arraigned on an indictment before a judge of the County Court and pleaded guilty to aggravated burglary[2] (one charge – charge 1); rape[3] (six charges – charges 2, 3, 4, 6, 7 and 8); assault with intent to commit a sexual offence[4] (two charges – charges 5 and 11); attempted rape[5] (one charge – charge 9); and sexual assault[6] (one charge – charge 10).
[2]Crimes Act 1958, s 77. The maximum penalty is 25 years’ imprisonment.
[3]Crimes Act 1958, s 38. The maximum penalty is 25 years’ imprisonment.
[4]Crimes Act 1958, s 42. The maximum penalty is 15 years’ imprisonment.
[5]Crimes Act 1958, ss 38 and 321M. By virtue of s 321P, the maximum penalty is 20 years’ imprisonment.
[6]Crimes Act 1958, s 40. The maximum penalty is 10 years’ imprisonment.
Following a plea in mitigation, on 7 June 2019 the judge sentenced the respondent to a total effective sentence of 12 years and six months’ imprisonment, with a non-parole period of eight years, in accordance with the following table:
Charge
Offence
Sentence
Cumulation
1
Aggravated burglary
6 years
1 year
2
Rape
6 years
Base
3
Rape
6 years
1 year
4
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
DPP v Drake [2019] VSCA 293
Case
[2019] VSCA 293
Decision Date
CaseChat Overview and Summary
The appellant, the Director of Public Prosecutions, sought leave to appeal against the sentence imposed on the respondent, who had pleaded guilty to aggravated burglary, rape, attempted rape, assault with intention to commit a sexual offence, and sexual assault. The court of appeal was tasked with determining whether the trial judge properly explained how the sentence related to the standard sentence for the offences, and whether the sentence was manifestly inadequate. This appeal arose from the respondent's forced entry into the victim’s home, and his protracted sexual offending against the victim.
The court had to examine the proportionality of the sentence, considering the totality of the respondent's offending and his moral culpability. The respondent argued that his background of dysfunction, disadvantage, and abuse during his formative years should have been given greater weight in determining the sentence. The court assessed whether the sentence was manifestly inadequate in light of these factors, referencing relevant case law and statutory provisions. The primary focus was on whether the judge adequately articulated the relationship between the sentence imposed and the standard sentence for the offences, as well as the proportionality of the sentence.
The court found that the trial judge had sufficiently explained how the sentence related to the standard sentence and that the sentence was not manifestly inadequate. The court held that the totality of the respondent's offending, his moral culpability, and the need for denunciation and deterrence were appropriately balanced in the sentencing. The court considered the relevance of the respondent's background but determined that it did not warrant a significantly different sentence. The appeal was dismissed, affirming the trial judge's sentencing decision.
The court's final order was that the appeal be dismissed, and the original sentence of 12 years and six months imprisonment, with a non-parole period of eight years, remain in place.